BC Supreme Court holds that strata-property nuisance dispute is within the Civil Resolution Tribunal’s jurisdiction
1 March 2018
By Kevin Zakreski
In a dispute that the court characterized as “extraordinarily heavy weather . . . made out of a common residential noise complaint,” the Supreme Court of British Columbia has dismissed an application under section 12.3 of the Civil Resolution Tribunal Act for an order that it wasn’t in the interests of justice and fairness that the Civil Resolution Tribunal resolve a strata-property claim.
Background to the application
The claims before the CRT have to do, mostly, with a noise complaint advanced by the [respondents]. They allege that over the last five or so years the petitioners have intermittently created unreasonable amounts of noise from within unit 602 in breach of the Strata’s bylaws forbidding such things. The [respondents] claim that this has caused an ongoing and unwarrantable interference with their use and enjoyment of unit 502.
The CRT is limited in most matters over which it has jurisdiction to claims not exceeding the small claims monetary jurisdiction of the Provincial Court. However, for strata property claims the Act contains no such limit. The [Civil Resolution Tribunal] Act makes a point, in other words, of differentiating strata property claims from all others rendered justiciable by the CRT. The legislature by necessary inference has mandated that the CRT should handle strata claims in any amount, large or small.
The Act was designed to deal quickly, efficiently and inexpensively with strata matters and to remove a wide swathe of strata disputes from the dockets of our over-burdened ordinary courts: see Act s. 3.6. Counsel have informed me, and my own research has confirmed, that the members of the CRT have been carefully selected for their specialised expertise, competence and experience within the areas of jurisdiction reserved to it.
The court was generally complimentary of the tribunal’s handling of these specific claims:
The facilitator conducted a detailed correspondence with both sides indicating a desire to move things along smartly and to find the underlying cause of this irksome and long-standing dispute as soon as possible. I enthusiastically endorse her brisk, no-nonsense attitude. In my view this is precisely what the case requires. I am convinced that the dispute between the parties is amenable to a speedy, logical and practical solution, and the facilitator appears to me to have been in the midst of politely but persistently shepherding the parties in that direction.
Nevertheless, section 12.3 of the Civil Resolution Tribunal Act provides scope for an application to the supreme court for an order “that the tribunal not resolve a claim that is or purports to be a strata property claim if . . . it is not in the interests of justice and fairness for the tribunal to resolve the claim.”
The bulk of the court’s reasons concerned the following three factors that the court may “consider” in making this determination:
- whether the use of electronic tools in the process of the tribunal would be unfair to one or more parties in a way that cannot be accommodated by the tribunal;
- whether an issue raised by the claim or dispute is of such importance that the claim or dispute would benefit from being resolved by the Supreme Court to establish a precedent;
- whether an issue raised by the claim or dispute is sufficiently complex to benefit from being resolved by the Supreme Court.
Unfairness of electronic tools
The court summarized the argument under this heading as follows:
The petitioners argue, essentially, that an electronic hearing will be inadequate in their case. Without the procedural guarantees and safeguards of a traditional trial in the Supreme Court, they say, and in the absence of the ability to cross-examine witnesses, it will be impossible to adequately test the evidence and resolve the credibility issues that they claim are at the heart of this dispute. Furthermore, the CRT’s somewhat relaxed and informal approach to the reception of evidence causes apprehension and uneasiness in the petitioners.
The court found that there was nothing to support these arguments:
in my view the expressed concerns about CRT processes, evidence-taking and adjudication are illusory. Issues of credibility are routinely addressed on written records, not only by the CRT, but by a host of other administrative boards, tribunals and commissions across multiple disciplines and areas of legal authority in British Columbia and elsewhere.
In any event . . . provision is made in the Act for a vive voce hearing if justice requires it, and an appeal lies to this court in case of an error of law, including a denial of natural justice: see Act s. 56.5. The petitioners sought to abandon the CRT system at such an early stage that they never even asked for an in-person hearing. I agree with the overall argument of counsel for the CRT that this petition has been pursued prematurely, without the exhaustion of CRT remedies specifically designed by the legislature to deal with precisely this sort of dispute, and without any proper foundation or cause.
Issue raised of importance or precedential value
This argument turned an agreement signed by the previous owners, who had installed the flooring what became the petitioners’ strata lot. It was characterized in the following terms:
The petitioners say that this issue is of general importance and must be decided in Supreme Court as a precedent for future CRT claims. The question, they say, is whether the Strata Property Act or the Strata’s bylaws inhere limitations upon common law conceptions of contractual privity.
The court dealt with the argument shortly:
I reject this argument. The Strata’s bylaws forbid all owners from using their property in a manner that causes unreasonable noise, a prohibition that applies to the petitioners, along with all other residents of the building, whether or not they are bound by the alteration agreement signed by the previous owners. In my view, as well, leaving aside any agreement, s. 48 of the Act authorises the CRT to order the petitioners to alter their flooring if the evidence establishes that it is the cause of the noise.
Complexity of the issues
Finally, the petitioners argued that “the dispute between the parties involves large amounts of money, interwoven with allegations of lack of procedural fairness against the Strata, over-layered with claims of bias on the part of the CRT facilitator, topped off with the ‘privity of contract’ issue just discussed.”
In the court’s view, these arguments weren’t sufficient to remove the claim from the tribunal:
I reject these arguments. The noise issue is not complex and the large awards sought by both parties—whether or not they are sustainable or realistic—do not make it so. In any event, the CRT’s monetary jurisdiction in strata disputes is unlimited. It has the express authority to deal with and, if necessary, to impose sanctions upon strata councils that fail in their duty of fairness towards owners. I have already said that the allegations of bias against the facilitator are groundless, and whether the alteration agreement binds the petitioners is something well within the competence of the CRT to decide subject to this court’s review jurisdiction on appeal.
In the result, the petition was dismissed and the claims were “remitted to the CRT for determination in the ordinary course of its rules and procedures.”